Real Estate Funding Ltd v Jagger

• Jurisdiction: Bahamas
• Judge: Nathan, J.
• Judgment Date: 18 May 1999
• Court: Supreme Court (Bahamas)
• Docket Number: No. 429 of 1996
• Date: 18 May 1999

Supreme Court

Nathan, J.

No. 429 of 1996

Real Estate Funding Limited

and

Jagger

Appearances:

Mr. Cedric Parker, for plaintiffs

Mr. Edgar Seligman, for defendant

Real property - Restrictive covenant on building — Whether fitting of air-conditioning unit and satellite dish on exterior of building constituted a breach of the restrictive covenant.

The plaintiff sold a condominium unit to the defendant who subsequently fitted an air-conditioning unit and a satellite dish on the exterior of the property. The issue was whether these fixtures were in breach of a restrictive covenant prohibiting any “remodelling” of the exterior appearances of the building.

An air-condition unit did not constitute a remodelling of the exterior appearance. The satellite dish did however constitute remodelling and offended the restrictive covenant. Relief sought by plaintiff granted in so far as it related to the satellite dish.

Nathan, J.

1 THE COURT: Thank you, Mr. Seligman. The decision in this case depends upon the construction of restrictive covenants in a conveyance and an associated restriction in a lease. The plaintiff was the vendor of a condominium unit and is also the lease holder of the common property of very attractive seaside units at Cable Beach on New Providence.

2 The defendant is a purchaser of one of the units and has to the chagrin of the plaintiff permitted an air conditioning unit to be fitted to the upper front top story of her unit and has encased it in a timber trellis framework.

3 This unit which I shall refer to as the air-con, sits on the floor of the veranda along the top floor of the unit.

4 The second item which offends the plaintiff is an 18-inch satellite receiving dish which is affixed to the top floor of the unit close to the roof line and it is coloured gray. I shall refer to this as the satellite dish. Neither an air-con nor a satellite dish feature in any of the authorities because these technological developments postdate all the quaint English authority which has been referred to me concerning restrictive covenants.

5 However, the judicial obligations remain the same, and that is to interpret the terms of the covenant and decide whether. the air-con and satellite dish offend the terms of a prohibition. To those terms I now turn.

6 Restrictive covenant number seven reads: “No new building shall be erected nor shall any remodeling of the exterior appearances of any existing building occur, and no additions to such building shall take place on any site in Caprice (the name of the condominiums) without the approval of the vendor (the plaintiff) in writing first being obtained.”

7 There follows provision for the obtaining of the consent of Caprice which shall not be unreasonably with-held.

8 A term of the lease relating to the common property which surround the defendant's unit reads, “To keep the exterior of the house in good repair and decorative condition, and prior to commencing, affecting or undertaking any such repair and decoration, Roman one: To submit specifications.”

9 It is said that the air-con and the satellite dish breach both the covenant and the clause of the lease.

10 I shall now attempt to describe the condominium and the offending objects in relation thereto.

11 Caprice sits astride a small limestone rise between the sea and the coastal road some 14 kilometres west of Nassau. This particular stretch of beach and land is well timbered and the gardens of Caprice have themselves been well tended and are luxurious and attractive.

12 The condominium units sit across the rise, and so they project out to seaward on the northern side, but the dividing walls of the units travel down to the water edge, and there is no pedestrians access along the waterfront. The northern side can only be approached by sea. No such geographic consideration apply to the southern face of the building which consist of a number of double-storied units mostly freestanding. Entrance is from the coastal road. Hence, there is a slight uphill drive, and that brings a visitor or home owner to a roadway within the curtilage which fronts on to the condominium units.

13 Therefore, every time a person enters the units, before them on the rise is the defendant's unit, visible on every journey. No such view is available from the sea. That which offends the covenant on one side of the units, may not do so form the other.

14 In interpreting terms of restriction in a covenant, the geography of the building both within its curtilage and generally is a matter to be taken into account.

15 That returns me to the terms of the covenant here which prohibits any “remodeling” of the exterior appearances of the building.

16 The issue then is whether the air-con unit constitutes a remodeling of the exterior appearance; same question arises in respect of the satellite dish. They cannot be considered together, and each item deserves separate consideration.

17 I come to the air-con unit. As I have already described, it sits wholly within the upper veranda and is enclosed in its own woodwork trellis. It is of relatively small size being some 750...